A.E. v. M.C.

• Decision Date: 10 August 2012
• Docket Number: 2101154 and 2101173.
• Parties: A.E. and J.E. v. M.C.
• Court: Alabama Court of Civil Appeals

100 So.3d 587

A.E. and J.E.

v.M.C.

2101154 and 2101173.

Court of Civil Appeals of Alabama.

April 13, 2012.

Rehearing Denied June 22, 2012.

Certiorari Denied Aug. 10, 2012

Alabama Supreme Court 1111276.

Jerry Wayne Baker, Jr., Albertville, for appellants.

Joan–Marie Dean, Huntsville, for appellee.

PER CURIAM.

A.E. (“the maternal aunt”) and J.E. (“the maternal uncle”) (hereinafter together referred to as “the maternal aunt and uncle”) appeal a determination that their niece, T.L.S. (“the child”), is not dependent and the award of custody of the child to the child's father, M.C. (“the father”).

The child's mother, J.L.S. (“the mother”), and the father never married. A February 5, 2005, judgment of the Marshall Juvenile Court, in case number CS–04–200172, adjudicated the father's paternity and ordered him to pay child support.

On June 7, 2006, the mother died; the child was two years old at that time. According to allegations in the record, shortly after the mother's death, S.K.P. (“the maternal grandmother”) and R.S. (“the maternal grandfather”) filed a petition in the Etowah Juvenile Court seeking to have the child declared dependent. On August 4, 2006, the Etowah Juvenile Court entered an order (hereinafter the “August 4, 2006, dependency order”) finding the child to be dependent and awarding pendente lite custody of the child to the maternal grandmother.¹ A handwritten notation on the August 4, 2006, dependency order states that the dependency petition and order were to be served on the father.

Within a few months of receiving custody of the child pursuant to the August 4, 2006, dependency order, the maternal grandmother transferred physical custody of the child to the maternal aunt and uncle. The maternal aunt and uncle did not seek or obtain a court order awarding them custody of the child. However, the child remained in the home of the maternal aunt and uncle until the entry of the July 2011 judgment in the underlying actions.

On October 14, 2010, the father filed a petition in the “Unified Family Court” of Marshall County; the action initiated by that petition was designated as case number DR–10–882. In his petition, the father sought an award of legal and physical custody of the child. The father named the mother, whom he identified in that petition as having been deceased for more than four years, as the sole defendant; the father named the maternal grandmother as a “potential intervenor” in case number DR–10–882 (hereinafter sometimes referred to as “the father's custody action”).²The trial court in that action entered an order specifying that the father's petition be served on the maternal grandmother.

On November 18, 2010, the maternal aunt and uncle filed in the Marshall Juvenile Court a petition seeking to have the child declared dependent and seeking an award of custody of the child. The action initiated by the maternal aunt and uncle's dependency petition was designated as case number JU–10–300302.01 and is hereinafter sometimes referred to in this opinion as “the dependency action” or “the maternal aunt and uncle's dependency action.” In their dependency petition, the maternal aunt and uncle alleged that the maternal grandmother had relinquished physical custody to them in 2006, shortly after the mother's death, and that the child had resided continuously in their home since that time; they also alleged that the father had voluntarily relinquished custody of the child to them. The maternal aunt and uncle later amended their dependency petition to allege that the child was dependent because, they argued, the father had abandoned the child. In their amended dependency petition, the maternal aunt and uncle sought the termination of the father's parental rights. At the trial of this matter, the maternal aunt and uncle withdrew their claim seeking the termination of the father's parental rights, but they continued to assert, in conformity with their amended dependency petition, that the father's actions constituted an abandonment of the child.

We note that this court's clerk verified that in Marshall County a domestic-relations action such as the father's custody action is within the jurisdiction of that county's circuit court.³ The maternal aunt and uncle's dependency petition invoked the jurisdiction of the juvenile court. Pursuant to § 12–17–24.1, Ala.Code 1975, Marshall County has created a family-court division that it has titled the “Unified Family Court,” which handles family-related actions arising under the jurisdiction of both the juvenile court and the circuit court. The record indicates that case number JU–10–300302.01 and case number DR–10–882 were each assigned to and considered by the same trial judge, apparently sitting in his capacity as a judge for the unified system in that county. Accordingly, this court will refer to the actions of the court below, whether in case number JU–10–300302.01 or in case number DR–10–882, as having been taken by “the trial court.”

After the maternal aunt and uncle filed their dependency petition, the maternal grandmother filed a motion to dismiss in case number DR–10–882, the father's custody action. The trial court did not expressly rule on the maternal grandmother's motion to dismiss, but on December 8, 2010, it entered an order setting the matter, together with the maternal aunt and uncle's dependency action (case number JU–10–300302.01), for a hearing. The trial court entered an order later in December 2010, awarding the father certain visitation with the child.

On January 7, 2011, the maternal aunt and uncle filed a motion in the father's custody action seeking to “consolidate” that action with their dependency action. The father filed in his custody action a notice of his “consent” to the consolidation of the two actions. The trial court did not enter an order specifically granting the consolidation, and, because the two actions invoked the jurisdiction of different courts, it does not appear that consolidation would have been appropriate in this case. The trial court did conduct a joint ore tenus hearing for the two actions. We note that at the ore tenus hearing the maternal grandmother informed the trial court that she did not want to be a party to the father's custody action because she was not seeking an award of custody of the child.

On July 22, 2011, the trial court entered a judgment denying the maternal aunt and uncle's dependency petition and ordering that case number JU–10–300302.01 be closed. Also on July 22, 2010, the trial court entered in case number DR–10–882 a judgment awarding custody of the child to the father. On August 5, 2011, the maternal aunt and uncle filed a postjudgment motion; the style of that motion indicated that it was filed with regard to both case number DR–10–882 and case number JU–10–300302.01. The trial court did not rule on the postjudgment motion, and on September 1, 2011, the maternal aunt and uncle filed a separate notice of appeal to this court in each case.

Much of the testimony from the transcript of the hearing concerns the details of the father's relationship with the mother and various details about the father's interactions with the mother, the maternal grandmother, the maternal aunt and uncle, or the child. This opinion summarizes the relevant portions of that evidence as follows.

The child was born in April 2004. The witnesses explained that the mother and the child had lived with the maternal grandmother and the maternal grandfather from the time the child was born until the mother's death in June 2006. The father admitted that he had been invited to but had not been present at, the birth of the child. It is undisputed that, before the mother's June 2006 death, the father had had brief contact with the child only a few times at the instigation of the mother; one of those of occasions was at the genetic testing that resulted in the February 5, 2005, paternity judgment.

The father attended the mother's funeral and memorial service in June 2006, and he saw the child during those events. The father also testified that, in the weeks following the mother's death, he visited the child approximately five more times at what he characterized as the maternal grandfather's home. ⁴

The maternal grandmother testified that the child remained in her physical custody following the mother's death and that the father did not request, or attempt to take, custody of the child. The maternal grandmother and the child moved to another county, and the maternal grandmother obtained pendente lite custody of the child pursuant to the August 4, 2006, dependency order. However, it is undisputed that, within a few months of the entry of that order, the maternal grandmother gave physical custody of the child to the maternal aunt and uncle.

The father admitted that, aside from the visits with the child he had had in the month or so following the mother's death, he did not visit the child for the remainder of 2006. The father also admitted that he did not see the child at all in 2007 and 2008 and that he had not requested visitation with the child during those years. The father testified that he did not visit the child in 2008 because the maternal grandmother had initiated a criminal action against him, alleging he had vandalized her vehicle; the father testified that he appealed his district-court conviction on that charge to the circuit court and was acquitted.

The father testified that, at the maternal aunt's invitation, he attended the party for the child's fifth birthday in April 2009. Shortly thereafter, the father met the maternal uncle for lunch to discuss the child. The maternal uncle testified that he had encouraged the father to visit the child and that he had invited the father to one of the child's athletic events. The father testified that he could not recall any of the details of that conversation, but he characterized it as “cordial.” It is undisputed, however, that the father did not attend the ...